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The fiery medical debate over a controversial new treatment for multiple sclerosis has spilled into the civil courts, as a heart surgeon on one side of the disagreement sues a neurologist on the other for allegedly libeling him.

The unusual lawsuit now appears headed to a jury hearing, after an Ontario court rejected Dr. Mark Freedman’s attempts to have the case quashed, saying partly there was evidence of malice by him that should be aired at trial.

Legal action arising from such a scientific dispute would seem almost unprecedented, said Daryl Pullman, a medical ethics professor at Memorial University of Newfoundland.

The surgeon said in his suit that Dr. Freedman acted maliciously and “with a reckless disregard for the truth,” part of a “continuing campaign to embarrass and vex the proponents of CCSVI,” according to the court ruling.

“Dr. McDonald felt strongly that Dr. Freedman’s conduct was inappropriate and went well beyond the bounds of proper scientific and professional discourse,” said the lawyer. “He accused Dr. McDonald of fraudulent, unethical, unprofessional conduct … to the highest health official in the province.”

A three-judge panel of Ontario’s Divisional Court upheld this month an earlier decision rejecting Dr. Freedman’s request to have the suit tossed out. His defence arguments, and the allegation that his comments were malicious – meaning he knew them to be false – should be assessed at trial, said a three-person panel of the Divisional Court.

Among other factors pointing to possible malice, “the language of the email itself is, in certain respects, inflammatory,” said Justice Herman Wilton-Siegel in the court’s ruling.

Someone should tell them about the infamous use of a slide of a Zamboni hockey-ice-cleaning machine in an MSS meeting, for an audience of pwMS. That was back in 2008 or so. There was also an incidence of him calling CCSVI nonsense (back in 2008 or so).

I think he includes a confidentiality warning in his e-mails. Maybe he should also have a liability disclaimer.

The Consortium-Serono-bribery allegations might also be relevant, given his connection with the Consortium.

Media-hunger can backfire. I guess Rob Ford is learning that, too, being the subject of late-night TV monologues.

They might also want to subpoena any relevant communications with members of the Harper government.

And we all remember the Great CCSVI Hoax comment.

I just think like some hockey teams, he has too much offense, and might better improve his defense.

I am seriously wondering why the National Post broke this story---honestly, they have not been pro-CCSVI research, and the reporter, Tom Blackwell, has written several "news" stories on CCSVI, all negative.

Just step back and ask why this newspaper would want to poke the hornet's nest....to pollute the case? Influence a judge or jury? Stir up more controversy? The hoax comment was published in the National Post by the same reporter.http://www.nationalpost.com/news/story.html?id=2475272

Something smells fishy. I really feel for Dr. McDonald, he has been thru it--I do not think he would want this case tried in the press...or online.cheer

It sounds to me like the press dishing more dirt: Blackwell isn't being sued. All he knows is it's a juicy story. I have faith in Ontario's judges. They know a Club from a Diamond, and an Ace from a Knave. I can believe there was malice behind name-calling to the highest health official in the province. I don't think this case will be tried anywhere but in Court, especially not here, or the pages of the National Post, or any newspaper. They could do worse than to ask a few questions here, or of Kirsty Duncan, but that's their business.

--Amended to acknowledge it was the National Post, not the Globe and Mail, as I am reminded below... OK, they got the scoop...

Last edited by 1eye on Sat Nov 16, 2013 8:04 am, edited 1 time in total.

Chutzpah, I think it's called (noun - (Yiddish) unbelievable gall). Whether the Court or the jury is impressed, we shall see.

A three-judge panel of Ontario’s Divisional Court upheld this month an earlier decision rejecting Dr. Freedman’s request to have the suit tossed out. His defence arguments, and the allegation that his comments were malicious – meaning he knew them to be false – should be assessed at trial, said a three-person panel of the Divisional Court.

Note that this does not necessarily mean anything Dr. Freedman said about CCSVI was what he knew to be false. But it may mean any allegations about fraud were malicious, because it could be argued he should have known that Dr. MacDonald was billing patients directly (not through OHIP) before registering an objection , and that that's why the complaints were not upheld by the College.

In October of that year, Dr. Freedman wrote his email to Deb Matthews, the Ontario health minister, and the regulatory college, suggesting that Dr. McDonald had “lured” patients to his imaging clinic, and billed the tests under the guise of another diagnosis to ensure medicare paid him.

Dr. McDonald asked him to retract the comments and then, when the other physician reiterated his accusations in a second email, launched his suit.

Dr. Freedman said in his defense that he was worried about patients being drawn to undergo a risky procedure when it had no proven medical benefit.

First of all, these were not necessarily his patients. Also, I see this campaign of his in the context of people being denied follow-up care (which Dr. MacDonald was providing), merely because some cantankerous individuals had been making a fuss that they had not been treated in Canada, but had sought the procedure in private facilities outside Canada.

A surgeon in Canada normally will not refuse to set a leg merely because the person broke it skiing in Colorado, or even because it was badly set outside Canada, even if a Canadian doctor had advised against having it set elsewhere. But people at the time were being denied the same kind of follow up care that Dr. Macdonald provided, for the same kind of specious reason. One patient may have died as a result.

Dr. Freedman has been defaming and insulting since the beginning of CCSVI research, with an absolute disrespect to real researchers. At the same time he has been hiding his connections to the pharma industry in his articles, which should carry a very big disclosure of interests.

This lawsuit is unfortunately a required step for CCSVI adoption. Research cannot advance with people like Freedman sabotaging the real researchers' work.

frodo wrote:Dr. Freedman has been defaming and insulting since the beginning of CCSVI research, with an absolute disrespect to real researchers. At the same time he has been hiding his connections to the pharma industry in his articles, which should carry a very big disclosure of interests.

This lawsuit is unfortunately a required step for CCSVI adoption. Research cannot advance with people like Freedman sabotaging the real researchers' work.

How can we support this lawsuit? Any idea?

Private letters to Dr. McDonald thanking him and showing support?Nothing public. The lawsuit could end in a settlement or it could end in a court battle that makes everyone look bad. I read someone online disparaging this as a "case of hurt feelings." The more attention that is brought to it, the more of that there will be.

frodo wrote:Dr. Freedman has been defaming and insulting since the beginning of CCSVI research, with an absolute disrespect to real researchers. At the same time he has been hiding his connections to the pharma industry in his articles, which should carry a very big disclosure of interests.

This lawsuit is unfortunately a required step for CCSVI adoption. Research cannot advance with people like Freedman sabotaging the real researchers' work.

How can we support this lawsuit? Any idea?

I wish I could help you, but he was my own neurologist, too recently for comfort. Patients with the right vocabulary who know something about CCSVI, might make good witnesses. This fight is in the hands of Dr. MacDonald's lawyers. There may be real experts, cardiac vascular people, IRs, who would be willing to go to bat for Dr. MacDonald in Court. If anybody knows one, that might help, but we don't even know if they need those people. You could start by offering the lawyers help if you have it to give.

Anyway the complaints may have been worked on since 2010, so they probably have what they need.

The defense already has outlined its case.

They will have to argue that some kind of "absolute privilege" protects "MS" doctors from liability for their behaviour. That specialists have some kind of divine right to behave this way, because their duty is to protect patients from themselves, especially when they are so unfortunate as to be vulnerable to fraud because of their cognitive difficulties.

Doctors, have associations that try to to protect other doctors. It should not be a contest that only shows whose professional association has the most money and power. This should also not be about CCSVI. It is, but that's a distraction, and one the legal beagles may try to exploit for their defense. The complaint is not directly about professionalism or accuracy of research, but against malicious libel. It is against a professional who should have known that an appeal against wasting the taxpayer's money was irrelevant, because Dr. MacDonald's CCSVI care does not depend on the taxpayer. Dr, MacDonald might be doing it below cost, because it is the right thing, on his own nickel.

The defense might have attempted to try CCSVI, and the patients who have it. They might have tried to make Dr. MacDonald seem greedy and not concerned about the welfare of patients. Or to make people involved with CCSVI work look like foreign criminals, who run scams on dying ALS patients, stealing their families' resources to pay for phony stem-cell schemes. They might have wanted to play up actual real stem-cell work in Canada.

Lawyers for the plaintiff might have wanted to show they are dealing with someone who sees himself as a self-appointed spokesman for people with "MS". Or that patients know at least as much about their own mysterious condition as their self-appointed spokes-people. That patients learned early not ask for opinions on CCSVI, because they know they will get them even if they don''t ask. Or that patients know drug researchers get well compensated for performances at the "MS" Society's events, and for "research" on "MS" drugs, where patients are as often as not unwilling victims of risky experiments with unproven drugs. That they are aware that they themselves are also victims of those drugs, even after they have been approved.

The amounts Anne Kingston has said that drug companies will pay for research on "MS" drugs might have been of interest in showing motivation to be untruthful. I would like to see a forensic accounting of money the "MS" Society has given, for instance what is in the brown "token" envelopes given to "MS" doctors for speaking at their "MS"" Pharma-sponsored events. I have been to plenty of those, and I could tell by the large quantities of chocolate chip cookies, coffee and other drinks, etc., at those meetings, that the organizers had never read Swank's book.

They might have tried to concentrate on media-seeking behaviour, because the publicity campaign against CCSVI has been as puzzling as the heavy-handed reception "MS" patients have received in Federal Parliament.

That federal campaign might have been looked at, maybe with an access-to-information request, as just another example of efforts against CCSVI research. That this one was no different, just appealing to the provincial Physicians and Surgeons College, and a provincial politician, maybe because of provincial jurisdiction over health. They might have pointed out that somebody who puts warnings on their emails might be expecting to be safe from lawsuits, and might have thought their emails would not see the light of day.

But the dice have likely already been cast, and we'll have to wait and see. Good luck to Dr. MacDonald.

frodo wrote:Dr. Freedman has been defaming and insulting since the beginning of CCSVI research, with an absolute disrespect to real researchers. At the same time he has been hiding his connections to the pharma industry in his articles, which should carry a very big disclosure of interests.

This lawsuit is unfortunately a required step for CCSVI adoption. Research cannot advance with people like Freedman sabotaging the real researchers' work.

How can we support this lawsuit? Any idea?

Private letters to Dr. McDonald thanking him and showing support?Nothing public. The lawsuit could end in a settlement or it could end in a court battle that makes everyone look bad. I read someone online disparaging this as a "case of hurt feelings." The more attention that is brought to it, the more of that there will be.

Whoever that is doing the disparaging, I would like emails sent to an association governing them who has the power to stop them working in their chosen field, and to a politician who pays them, complaining of fraud, of wasting taxpayers' money, and of luring vulnerable customers to a phony and dangerous product, the only real reason for the emails being to hurt their competitor. These complaints could have cost him his job and his business, and ruined his reputation as a cardio vascular doctor. I would have hurt feelings too, and might have to scrounge up a few high-powered lawyers of my own, just to make myself feel better. And maybe a mite safer. Hope they make him a lot richer.

I hope Dr. Freedman has to settle for a punitive, corrective amount of what he understands: his own money. My opinions? They will get you a cup if you have the Starbucks. They are: This is no trivial case. It is about a serious matter. It probably is costing a bundle. The emails were personal opinion, thus may have hurt the Ottawa Hospital's reputation, and I think he should have to pay his own money to defend it. He is probably wasting his own group's money trying to defend it. A personal apology would have been a lot cheaper, and I think it wouldn't have been nearly enough. The hospital should sue him too.

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